Faulisi v. State, 46A03-9203-CR-00093

• Decision Date: 16 November 1992
• Docket Number: No. 46A03-9203-CR-00093,46A03-9203-CR-00093
• Citation: 602 N.E.2d 1032
• Parties: Ignatius W. FAULISI, a/k/a Joseph W. Rizzo, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.
• Court: Indiana Appellate Court

Page 1032

602 N.E.2d 1032

Ignatius W. FAULISI, a/k/a Joseph W. Rizzo, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.

No. 46A03-9203-CR-00093.

Court of Appeals of Indiana Third District.

Nov. 16, 1992.

Transfer Denied Jan. 20, 1993.

Eugene C. Hollander, Special Asst. to Office of State Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found Ignatius Faulisi guilty of Arson, a class A felony ¹. On appeal, he raises five issues for our review, which we restate as follows:

1. Whether the trial court erred in denying Faulisi's Motion to Dismiss the Amended Charging Information, because the facts alleged therein did not constitute a Class A felony offense?

2. Whether there was sufficient evidence to support Faulisi's conviction?

3. Whether the trial court committed fundamental error when instructing the jury on the elements of arson?

4. Whether the trial court erred in refusing to grant Faulisi's Motion for Discharge based on his right to a speedy trial?

5. Whether Faulisi's sentence of fifty years is excessive?

We affirm.

Faulisi had been employed as the manager of a fireworks store owned by Mark Rizzi. He was fired because Rizzi suspected that Faulisi had been stealing from the business. Later, because he was angry about his being fired as manager, Faulisi made threatening comments against Rizzi and the fireworks store. Then, on June 19, 1990, around midnight, a police officer noticed smoke coming from the fireworks store and proceeded to investigate. He observed Faulisi speeding away in a car with a passenger at his side. Immediately giving pursuit and three miles later, the officer stopped Faulisi's car and inquired about the missing passenger. Faulisi replied that the passenger had started the fire and had escaped on foot. The Officer arrested Faulisi who was later charged on June 25, 1990, with arson, a class A felony.

Faulisi's first trial began on October 30, 1990 and ended on November 2 in a mistrial because the jury was unable to reach a verdict. As a result of two continuances, the court's congested calendar, and the limited availability of Faulisi's counsel, Faulisi was not tried again until November 5, 1991. After the second trial, the jury found Faulisi guilty of arson. He received a sentence of fifty years.

I.

Charging Information

The amended charging Information alleged in relevant part:

Ignatius W. Faulisi ... did then and there unlawfully, damage by means of fire the property of Mark A. Rizzi, to-wit:

a building located at 9 East U.S. Highway 30, Wanatah, LaPorte County, Indiana under circumstances that endangered human life, to-wit: set fire to a building containing fireworks which resulted in the bodily injury of two firemen.

Record, p. 19.

IC 35-43-1-1(a)(2) states that arson "is a class A felony if it results in either bodily injury or serious bodily injury to a person other than a defendant." Faulisi argues that bodily injury to firefighters is not grounds for invoking the class A felony provision because firefighters are paid to incur the risks of responding to fires. Thus, they are not within the class of persons the statute was intended to protect.

This issue was recently addressed for the first time by this court in Alexander v. State (1992), Ind.App., 600 N.E.2d 549. In Alexander, Judge Hoffman opined that firefighters are within the class of persons protected by IC 35-43-1-1(a)(2). Id., at 552-53. We agree with the result in Alexander.

We will not presume that in enacting IC 35-43-1-1(a)(2) the legislature intended to exclude firefighters from the scope of "human life". Giving the words of the statute their plain meaning, we see no basis for distinguishing between the lives of firefighters and the lives of others. Additionally, previous decisions from this court support such a conclusion.

In Thacker v. State (1985), Ind.App., 477 N.E.2d 921, we found there was sufficient evidence to support Thacker's conviction for arson, stating:

The record discloses that the fire was set in a pile of rubbish inside a garage just some seventy-five feet from the main house in a residential area. To say that this fire posed no eminent threat to spreading or enveloping the residential neighborhood, to say the least including the concerned crowd that had gathered by the time firemen arrived at the scene, or the firemen themselves in fighting the blaze, goes against all reason.

Id. at 924 (emphasis added).

In Lahrman v. State (1984), Ind.App., 465 N.E.2d 1162, trans. denied, the defendant was convicted of class B felony arson. However, we found the following Information to encompass charges of both class A and B felony arson:

[Lahrman did] knowingly damage by means of fire property of North State Sales, to-wit: the North State Sales building, located on Route 127 North just north of Angola, Indiana, under circumstances that endangered human life, ... which resulting fire endangered the lives of those persons fighting the fire ... which fire caused bodily injury by smoke inhalation and/or burns to two (2) firemen; ....

Id. at 1168. The Lahrman decision suggests not only that endangering the life of a firefighter supports a conviction for class B felony arson, but also that bodily injury to a firefighter justifies elevating the offense to a class A felony.

Faulisi bases his argument on a decision by the Supreme Court of Louisiana, State v. Bonfanti (1969), 254 La. 877, 227 So.2d 916. In Bonfanti, the court considered the following statute: "[a]ggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable, whereby it is foreseeable that human life might be endangered." LA.REV.STAT.ANN. 14:51 (West 1986) (emphasis added). The Bonfanti court held that aggravated arson was not effectively alleged where the only lives foreseeably endangered by the fire were those of firefighters because, otherwise, the offense of simple arson ² would be rendered obsolete. Id. at 918. Faulisi analogizes the element of bodily injury in the case at bar, concluding that it too is not intended to apply to firefighters. Because the arson statutes of Indiana and Louisiana differ substantively, ³ we decline Faulisi's invitation to apply the reasoning from Bonfanti to the case at bar.

Our result today is not inconsistent with Galbraith v. State (1984), Ind.App., 468 N.E.2d 575, trans. denied. In Galbraith, this court did not rely on Bonfanti, as Faulisi asserts. ⁴ Rather, we acknowledged the interpretation the Supreme Court of Louisiana gave its own statute, without adopting that interpretation. Galbraith, supra, at 578, n. 3.

We agree with the tenor of the Indiana decisions discussed above and find that if arson endangers the lives of firefighters and results in bodily injury to a firefighter, it constitutes a class A felony. The trial court acted properly in denying Faulisi's Motion to Dismiss the amended Charging Information.

II. Sufficiency of Evidence

Faulisi contends the evidence was insufficient to establish that Faulisi committed the arson. Our test for sufficiency of the evidence requires that we neither reweigh the evidence nor resolve questions of credibility. We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the verdict. Chandler v. State (1991), Ind., 581 N.E.2d 1233, 1237.

Faulisi was convicted under the theory that he either committed the arson himself, or aided in its commission. ⁵ One is criminally responsible for all the acts of his accomplice which were the natural and probable consequence of their common plan. Moredock v. State (1987), Ind., 514 N.E.2d 1247, 1249. In determining whether aiding or abetting may be inferred, the following factors are considered:

(1) presence at the scene of the crime;

(2) companionship with another engaged in a crime;

(3) failure to oppose commission of the crime; and

(4) the course of conduct before, during, and after the occurrence of the crime.

Johnson v. State (1986), Ind., 490 N.E.2d 333, 335.

The evidence most favorable to the verdict reveals Faulisi and his passenger were present at the scene of the fire when the fire was started. When a police officer arrived in a marked police car, Faulisi drove away at a speed of seventy miles per hour in the rain, despite a speed limit of forty miles per hour. Attempting to pull Faulisi's car over, the officer followed Faulisi for approximately three and one-half miles with his emergency lights activated before Faulisi stopped. Faulisi's passenger then emerged from Faulisi's car and successfully fled on foot. The officer arrested Faulisi, whereupon Faulisi told the officer that his passenger had started the fire at Action Fireworks.

Testimony presented at trial shows Faulisi had a motive for the arson. Angry over being fired and locked out of the business, Faulisi told one witness he was angry enough to kill Rizzi. Another witness, William Taylor, testified that on the day before the fire, Faulisi told Taylor that Taylor should burn Action Fireworks, adding that "someone should do a number on" Rizzi. Record, p. 570-71. Later that same day, Faulisi entered Action Fireworks with a male companion and threatened to have Rizzi harmed and to burn the store down before Rizzi could cheat Faulisi again.

The evidence establishing Faulisi's presence at the scene, his companionship with one whom Faulisi, himself, identified as the arsonist, and his conduct both before and after the crime, is sufficient to support his conviction for arson.

Faulisi also contends the conviction for arson as a class A felony cannot stand because there was insufficient evidence that a bodily injury occurred. "Bodily injury means any impairment of physical condition, including physical pain." IND.CODE 35-41-1-4 (1988). "Medical treatment, bloodshed...